nations had existed previously From time immemorial there had been consular and dip­
2 lomatic relations between different communities, as well as treaties o f alliance or o f peace.3
THE HISTORICAL EVOLUTION
OF THE INTERNATIONAL
COMMUNITY
2.1 I NT RODUC TI ON
We should now ask how the law of the international community acquired the unique fea­
tures it currently shows. As a result of what historical events did it evolve in such a way as
to appear so markedly different from all domestic legal systems12*7
In tracing this historical process, it is useful to divide it into various stages. Periodization
is. o f course, always a construct, and therefore arbitrary to some extent' nevertheless, it may
prove helpful for a better understanding o f some major turning points. The evolution o f the
international community can be broadly divided into four major stages; from its gradual emer­
gence (sixteenth -early seventeenth century) to the First World War, from the establishment of
the League of Nations to the end of the Second World War ( 1919-45); from the establishment
of the United Nations to the end of ihe Cold War (1945-89); and foe present period.
2.2 T H E EMERGENCE OF T HE PRESENT
I NTERNATIONAL C O M M U N I T Y BEFORE
T HE PEACE OF WE ST PHA LI A
The origin o f foe international community in its present structure and configuration is usu­
ally traced back to foe sixteenth century. The symbolic starting-point where it is deemed
to have crystallized is the Peace o f Westphalia (1648), which concluded the ferocious and
sanguinary Thirty Years War." O f course, international intercourse between groups and
1 The periodization on which the following presentation relies is based on the widely influential W. G.
Grewe, Epochen der Volkerrechtsgeschichte (Baden-Baden: Nomos, 1984), translated into English by M. Byers in
2000 under the title The Epochs o f International Law (Berlin: De Gruyter, 2000). Grewe s ‘epochs’ were defined
by reference to the preponderance of one or more Powers. It has been simplified for present purposes. For a
recent analysis of the periodization question see L de la Rasilla. T h e Problem of Periodization in the History of
International Law’ (2019) 37 Law an d History Review 275.
2 This is the start of what Grewe calls the French age o f the ‘droit public de FEurope’ Epochen, part III.
A century' earlier. E. Nys had selected the Peace of Westphalia as the moment at whkh international law crys­
tallized, see E. Nys, Les origines du droit international (Bruxelles: Castaigne, 1894). For a study placing the
European origins of international law in the wider perspective of different legal orders prevailing in different
regions see Y. Onuma, ‘When Was the Law of the International Society Bom? An Inquiry on the History o f
International Law from an Intercivilizational Perspective' (2000) 2 Journal o f the History o f International Law 1.
Even within Eurocentric accounts, the 1648 symbolic starting-point has been questioned. See c.g. A. Osiander,
‘Sovereignty, International Relations, and the Westphalian Myth’ (2001) 55 International Organization 251;
M. Koskenniemi, ‘Histories o f International Law: Dealing with Eurocentrism' (2011) 19 Rechtsgeschichte 152.
Reprisals had been regulated for many years and during the Middie Ages a body of law on
the conduct o f belligerent hostilities had gradually evolved. And yet all these relations were
radically different from current international dealings, for ihe fabric o f the international
community itself was different. Even in the late Middle Ages, when international relations
of a kind resulted from foe splitting o f communities into various groups headed by feudal
lords, the international community differed from the present one. and this for two main
reasons.
First, fully fledged States—in the modern sense—did not yet exist. Centralized
structures, which had gradually come into being in Europe between 1100 and 1300.
did not assume the typical features o f a modern State until after 1450. O f the various
historical enquiries into the origin o f the modern State, one may quote here those of
J. R. Strayer.4 In his view, what characterizes the modern State and differentiates it from
both ‘the great, imperfectly integrated empires’ o f the past and the small, but highly cohe­
sive units, such as the Greek city State’, are the following characteristics: the appearance
of political units persisting in time and fixed in space, the development of permanent,
impersonal institutions, agreement on the need for an authority' which can give final judg­
ments, and acceptance of foe idea that this authority should receive the basic lovaltv o f its
subjects’. Underlying them are a shift in loyalty from family, local community, or religious
organization to the State, and the acquisition by the State o f a moral authority to back up
its institutional structure and its theoretical legal supremacy' In addition to these features,
foe modern State shows a very important distinguishing trait, the emergence o f centralized
bureaucracies, which gradually turn into ministerial departments ' It was no doubt a slow
evolution; nevertheless, in the seventeenth centurv the permanent core o f the State was foe
bureaucracy although, as Jellinek pointed out, one had to wait untii the adoption on 25 May
1791 o f the French decret establishing the various ministries for the ‘principle of division o f
labour to be completely carried through in public administration, and for ministers in the
sense o f administrative law to side by foe monarch.6
The period following the Peace o f Westphalia inaugurated a new era also in a second
respect. P re v io u sly there had been foe overpowering presence of two poles o f authority': foe
Pope at the head of the Catholic Church, and the Emperor at foe head o f the Hoiv Roman
Empire (which had been set up as early as ad 800 by Charlemagne and had encompassed
most o f Europe, but dwindled in foe seventeenth century to the Germ an territory in central
Europe). The necessary premise for the development of the present international com ­
munity* was the demise o f the previous structure and foe rise o f modern national States
between the fifteenth and seventeenth centuries. This momentous phenomenon, indisput­
ably favoured by the conquest o f America (1492) and foe dissemination o f Protestantism
after the Reformation, led to the formation o f a number o f strong States, all o f which sought
to be independent of any superior authority. Western countries such as England, Spain, and
France, follow'ed by the Netherlands and Sweden, as well as the Ottoman Empire, China, and
? For a remarkable srudy of ihe legal aspects of such interactions see D. I. Bederman, International La*- in
Antiquity (Cambridge: Cambridge University Press, 2001), chapters 4 and 5.
4 J. R. Strayer, On the Medieval Origins o f the M odem State (Princeton. Nl: Princeton University Press, 1979). 9.
' In an important book, H .}. Berman has argued that the first such legally organized bureaucracy the
Western church after Pope Gregory VII. See H. J. Berman, Law and Revolution: Tnc Formation o f the Western
Legal Tradition (Cambridge, MA: Harvard University Press, 1983).
6 G. Jellinek, ‘Die Entwicklungdes Ministeriums in der Konstitutioneiien Monarchie i 18S3), in Ausgewdhlte
Schriften und Reden (Berlin: O. Haring, 1911), ii, 98.
Japan in the East, increasingly regarded one another as separate and autonomous entities,
and each struggled to overpower the other. New standards of behaviour became necessary.
Consequently, either the old rules were given a new shape or new norms were developed.
In this respect an important contribution was made by a number of imaginative and
forward-looking jurists, such as the Spaniards Francisco de Vitoria (1 4 8 3 -1 5 4 6 )7 and
Francisco Suarez (15 4 8 -1 6 1 7 ),8 the Italian Aiberico Gentili (1552-1608),9 a Protestant
who fled to England, where he taught at Oxford, and above all the Dutchman Hugo Grotius
(1583-1645).10 They set out to lend a lucid legal justification to the interests o f the emerging
States in general, and o f their own countries in particular.
The Peace o f Westphalia concluded a most appalling war, which had caused great effu­
sion of Christian blood and the desolation o f several provinces’ (preamble to the Treaty
o f Monster). The m ajor countries o f Europe had been involved; the conflict had started
in 1618 for religious reasons, namely the struggle between Catholics and Protestants, but
it soon turned into an all-out struggle for military and political hegemony in Europe.
The treaties o f peace were signed in the Westphalian towns o f Munster and Osnabruck.
Questions of prestige accounted for the choice o f two places for negotiating peace: France
and Sweden, the former Catholic, the latter Protestant, quarrelled over the question of
precedence; consequently France was given priority in Catholic Munster and Sweden in
Protestant Osnabruck- However, from the legal point o f view, the treaties made up an inte­
grated whole.
The treaties constitute a watershed in the evolution o f the modem international com m u­
nity’ First, they recognized Protestantism at an international level and consequently legiti­
mized the existence o f States based on Calvinist or Lutheran faith. Henceforth, even from
the point of view o f religion, it was recognized that the State was independent from the
Church. Secondly, the treaties granted members o f the Holy Roman Empire (som e three
hundred small States) the ju s foederationis^ that is, the right to enter into alliances with
foreign Powers and to wage war, provided that those alliances or wars were neither against
the Empire ‘nor against the public peace’ and the ‘treaty’ (Treaty o f Munster, Article 65).
Thus, a number o f small countries were upgraded to the status o f members o f the interna­
tional community* with quasi-sovereign rights. Thirdly, the treaties crystallized a political
distribution o f pow er in Europe that lasted for more than a century. France, Sweden, and
the Netherlands were recognized as the new emerging big Powers; Switzerland (and the
Netherlands) were given the status of neutral countries; Germany was split up into a num­
ber of relatively small States. In short, the Peace of Westphalia testified to the rapid decline
of the Church (an institution which had already suffered many blows) and to the de facto
disintegration o f the Empire. By the same token, it recorded the birth o f an international
system based on a plurality' o f independent and rival States, recognizing no superior
authority' over them.
The treaties signed in 1648 aiso set up a scheme for collective security, which remained,
however, dead letter. It is nevertheless worth recalling it, as it provides background for
the discussion, later in this chapter, o f the Covenant o f the League of Nations. Under this
scheme, peace was to be enforced. Pursuant to Article 123 o f the Treaty’ o f Munster, the
See I. Brown Scott, The Spanish Origin o f International Law. Francisco de Vitoria and His Law o f Nations
(Oxford Clarendon Press, 1932). A critical appraisal of Vitoria is provided by A. Anghie, ‘Francisco de Vitoria
and me Colonial Origins of International Law’ (1996) 5 Social & Legal Studies 321.
* See I. Soder, Francisco Suarez und das Volkerrecht (Frankfurt am Main: Metzner, 1973).
* See G. van Molen, Aiberico Gentili and the Development o f International Law (Leiden: Sijthoff, 1968).
:c See the monumental P. Haggenmacher, Grotius et la doctrine de la guerre juste (Paris: PUF, 1983).
victim o f a threat to peace or any serious violation was not to resort to war, but should
exhort the offender not to come to any hostility', submitting the cause to a friendly compo­
sition or to the ordinary' proceedings o f justice’. Article 124 envisaged a cooling-off period,
lasting as long as three years; if at its expiry no settlement had been reached, the injured
State was entitled to wage war, and all the other contracting parties were to assist it by using
force. In addition, States were duty -bound to refrain from giving military' assistance to the
offender, nor could they' allow the latter’s troops to pass through or stay in their territories
(Article 3). Thus, the collective security’ system envisaged in 1648 hinged on the following
notions: (i) a sw eeping ban on the use o f force; (ii) a prohibition on individual self-defence,
except after the expiry o f a long period; (iii) the duty' of all States other than the victim of a
wTong to act in collectiv e self-defence. This scheme was never put into effect. Though weak
and rudimentary’ by modem standards, it was too far ahead o f its time and in harsh conflict
with the interests and predispositions o f States. Members o f the international community'
followed a different pattern o f behaviour, based on both the untrammelled right of indi­
vidual States to resort to war whenever they considered it appropriate and the lack of any
obligation to give military’ assistance to the victims of attacks by other States.
2. 3 FROM THE PEA CE OF WESTPHALI A TO THE END
OF T HE FIRST WORLD WAR
2 .3 .1 T H E C O M P O S IT IO N OF T H E IN T E R N A T IO N A L C O M M U N IT Y
Since its inception, the world community' has encompassed States belonging to different
geographic, cultural, and religious areas. While a significant body o f practice concerns rela­
tions between European States, treaties were also concluded with other States with which
Europe had come into contact, chiefly the Mogul Empire in India, the Ottoman Empire,
Persia, China, Japan (since 1854), Burma, and Siam (which has been called Thailand since
1939), as well as with the States o f Ethiopia and Liberia (the latter independent since 1847),
and Haiti (independent since 1804). Only one year after the Peace ofWestphalia, on 1 July'
1649, the Holy Roman Empire concluded a treaty' with the Ottoman Empire for the con­
tinuation o f the peace which had been agreed in 1642.
The practice o f European States, joined by the US in 1783 and by the Latin American
countries betw'een 1811 and 1821, is o f particular relevance for the understanding of how'
international law emerged. Grew'es characterization o f the period following 1648 as that
o f a European public law’ captures a particular moment in the process o f development of
international law; even if this process is situated in the wider context o f different legal orders
prevailing in different regions o f the world.11 All the States just mentioned had a common
religious matrix: they' were Christian. This common background made for a certain sense
o f belonging. Despite political, econom ic, and military conflicts, culture and religion acted
as cement uniting them. As late as the 1870s, this common trait was a mark o f civilization’
such that, to signal modernism and seek acceptance by the community, Japan displayed
its adherence to values o f human dignity' through the rejection o f the coolie (contractual
slave) trade.12 Another strong unifying factor was the pattern o f internal economic and
11 See Onuma, ‘When Was the Law of the International Society Born?’ (n 2).
12 This can be illustrated by reference to the Case o f the ‘Maria Luz\ On the historical circumstances of this
case see S. Jones Crawford, ‘The Maria Luz Affair’ (1984) 46 The Historian 546.
24 O R IG IN S AND F O U N D A T IO N S OF T H E IN T E R N A T IO N A L C O M M U N ITY
political development All Western States were the outgrowth o f capitalism and its equiva­
lent phenomenon in the political field: absolutism (followed in subsequent years by parlia­
mentary democracy).
In a number o f respects, non-Christian States, even powerful ones such as the Ottoman
Empire, lived for many years on the margin o f this international community' defined by'
European Powers: they did not take a very active part, nor did they play any m ajor role,
in it. For several centuries, from the beginning o f the sixteenth to the eighteenth century,
some Asian Powers (namely all State entities in the East Indies, as well as Persia, Burma,
and Siam) entertained international relations with European countries on a footing of
complete equality. However, the industrial revolution that took place in Europe in the late
eighteenth century' introduced power inequalities and created a gap between Europe and
non-European States. This gap steered the bellicose appetites o f European Powers which, in
the nineteenth century; set out to conquer vast sw athes o f territory' from the latter or open
their markets in a process closely intertwined with the emergence and consolidation o f
classical international law;13
The debate on the relations betw een international law' and imperialism is vivid, and it
has many strands.1415Be that as it may; three points are difficult to question. First, since its
inception the w'orld community' consisted not only o f European States, but embraced other
countries and nations as well, and there was some degree o f intercourse between all sec­
tions o f the community -, how ev er, many factors including geographical distance and the
slowness of communication and transport rendered transactions betw een European and
other countries particularly difficult. Secondly, for various reasons, the European Powers
set the tone, at least in the last three centuries, and they piayed a dominant role through­
out. Thirdly; Western jurists played a major role in supporting the domination penchants
o f European Powers. Indeed, they consistently theorized about and buttressed the idea o f
‘European’ superiority;
As pointed out above, non-European States bowed to Western ‘superiority’ and even­
tually' submitted to the rules elaborated by European countries. Western States tended to
dev elop two distinct classes o f relations with the ‘outside’ world, depending on whether this
V o r k f consisted o f States proper (the Ottoman Empire, China, Japan, etc.) or was instead
made up of communities lacking any organized central authority (tribal communities or
communities dominated by local rulers, in Africa and Asia). With the former, Europe and
the United States to a large extent based their relations on the ‘capitulation sy stem. They
considered the latter largely as objects of conquest and appropriation, and consequently
turned them into colonial territories.13
Let us consider first the capitulation system. Capitulations were unilateral concessions,
later construed by European writers as agreements, concluded by Western States with
Moslem rulers (later on with the Ottoman Empire); with some Arab countries (Egypt, Iraq,
Syria, Morocco, Palestine); with Persia, Siam, China, and Japan ever since the sixteenth
13 On the relations betw een imperialism and the development o f classical international law' see A. Anghie,
Imperialism, Sovereignty and the Making o f International Law (New York: Cambridge University Press, 2007).
M See M- Koskenniemi. W. Rech. and M. Jimenez Fonseca (eds), International Law and Empire: Historical
Explorations (Oxford: Oxford University Press, 2016); B. Fassbender and A. Peters (eds), Tne Oxford H andbook
o f the History o f International Law (Oxford: Oxford University Press. 2012), part V (devoted to encounters’
between, on the one hand, European Powers and. on the other hand, China. Japan, India. Russia, and North
American indigenous peoples).
15 However, an extensive study by M. Hebie has shed new light upon these relations, emphasizing the use by-
colonial Powers o f standard treaty techniques with local rulers to gam sovereignty. See XL Hebie. Som-erainete
p ar traite: Une etudes des accords entre puissances coloniales et entites politiques locales (Paris: PUF. 2015),
T H E H IS T O R IC A L EV O L U TIO N OF T H E IN T E R N A T IO N A L C O M M U N IT Y 25
century. The capitulations regime was consolidated in the seventeenth and eighteenth
centuries: the treaty' o f 1740 between France and the Ottoman Empire is usually men­
tioned as being o f great significance for the delineation o f the main traits o f this regime.16
Capitulations served to define conditions for the residence o f Europeans (later also US
nationals) in the territory o f non-European countries. They* tended to include the following
basic provisions: (i) Europeans w*ho were nationals of a party to the agreement could not
be expelled from the country' without the consent o f their consul; (ii) they had the right to
practise public worship o f their Christian faith; to this end they could erect churches and
have their own graveyards; (iii) they enjoy'ed freedom of trade and com m erce and were
exempted from certain import and export duties; (iv) reprisals against them were pro­
hibited, especially in case of insolvency'; (v) jurisdiction over disputes between Europeans
belonged to the consul of the defendant or, in criminal cases, of the victim (hence not to
the territorial court), while in the case o f disputes betw'een a European and a national o f the
territorial State the jurisdiction devolved upon the judges of the latter State.
Three features o f this legal regime are striking. First, Europeans came to make up a legal
community' completely separate from the local one and actually subject to their owm national
authorities, which thereby extended their control extraterritoriaUy; Secondly, this regime
was not based on reciprocity': it consisted o f a number of privileges granted to Europeans
on non-European territory; with no counterpart in favour o f non-European nationals.17
The overwhelming inequality on which capitulations rested was clearly indicative o f the
existing relations. Thirdly; at least in the eighteenth and early nineteenth centuries, certain
non-Western States did not see capitulations as detrimental to their sovereignty; Thus, for
instance, a Japanese author stated that ‘[tjh e Japanese authorities in those days, which had
little know ledge o f the concept o f extraterritoriality; regarded national law s o f Japan as
something sacred, for the benefit o f wiiich foreigners were not worthy' o f enjoym ent!1* And
Alexandrowicz has pointed out that capitulations rested on an ancient Asian tradition akin
to a lex m ercatoria.19 Nonetheless, Western rights o f extraterritoriality constituted seri­
ous restraints on the sov ereignty o f the territorial State. Later on, tow'ards the end o f the
nineteenth century; they were deeply felt as an undue encroachment ev en by* the Japanese
authorities, and they* were gradually terminated (see 2.4.4).
Let us now* turn to the relations o f European States with another class o f other’ coun­
tries, namely those lacking comparably developed State-like structures, or governed by
a great num ber ot local authorities frequently feuding with one another. These countries
and territories were gradually subjected to the colonial domination o f W estern Powers.
Europeans first colonized the Americas in the fifteenth century; As soon as the first signs
of rebellion were apparent in America, Asia became a desirable area. In the eighteenth
century; first France and then Britain appropriated large portions o f India, until in 1772
most o f India actually became a British colony. In the nineteenth century; after many
Latin American countries became independent, Europeans turned to A frica, while at
** initially, capitulations consisted o f unilateral concessions granted by the Ottoman Empire at its discretion
and revocable, although by the late nineteenth century they came to be seen as agreements binding on the par­
ties. O r tins point see U. Ozsu, ‘Ottoman Empire’ m Fassbender and Peters, The Oxford H andbook (n 14), at 431.
The tew instances adduced by Alexandrowicz o f privileges granted in Europe to non-European partners
are exceptional and cannot be considered representative. See C. H. Alexandrowicz, ‘The Afro-Asian World and
the Law or Nations: Historical Aspects’ (1968) 123 R C A D I117, at 125.
,s H. Otsuka, ‘Japan’s Eaily Encounter with the Concept of the Law of Nations’ (1969) 13 fYIL 56.
Alexandrowicz, ‘The Afro-Asian World’ (n 17). at 151 (‘ancient custom in Asia allowed foreign merchants
to govern themselves by their own personal law instead of submitting to the jurisdiction and the law o f the host
country and possibly to a different way of life’).
the same time intensifying their interest in Asia. One m ajor stepping stone in the strat­
egy’ o f appropriation was the Berlin Conference o f 1 8 84-85, attended by such European
countries as Austria-Hungary, Belgium, Denmark, France, Germany, Britain, Italy, the
Netherlands, Portugal, Russia, Spain, Sweden-Norway, plus the Ottoman Empire and
the US, and resulting in the G eneral Act o f the Berlin Congo Conference o f 26 February
1885.20 The interior o f the A frican continent was split up among Britain, France,
Portugal, Belgium, Germany, and Italy. Meanwhile, Britain, France, and the Netherlands
either appropriated or consolidated their control over Asia. Even a State formerly under
colonial domination, the US, took part in the colonialist trend. It seized power over the
Philippines in 1898 as a result o f the war with Spain, concluded by the Peace Treaty o f
Paris in 1898.
An important question which should be raised here is that o f the role of international
law in the process o f colonial conquest. It has been argued that this body o f law greatly
facilitated the task o f European Powers,21 offering them, as it did, a large number of legal
instruments designed to render conquest smooth and easy. International law authorized
States to acquire sovereignty over those territories, both by downgrading the latter to ter-
rae nullius, namely, territories belonging to no one, and by depriving the local com m u­
nities or rulers o f international standing. Although the latter point has been called into
question on the basis o f an important body o f documentary evidence,22 the fact remains
that effective occupation and de facto control over the territory’ ( coupled with the intent o f
appropriation) were sufficient, or have been considered to be sufficient in retrospect, for
the acquisition o f sovereign rights. Furthermore, if local rulers opposed the colonial con­
quest, international law offered two instruments: either war (without all the legal restraints
applicable to wars between civ iliz e d ’ States), or the conclusion o f treaties (indeed a great
number o f agreements with ‘local rulers’ or chieftains were entered into by European
States, and they* normally lacked any reciprocity). The same legal instruments were avail­
able in case o f conflict between colonial Powers and other Western countries wishing to
appropriate the same territories: either the waging of a war or the conclusion of an agree­
ment settled the matter.
2 .3 .2 T H E B A LA N C E OF POWrER
Throughout the whole period under consideration power was spread out: no single State
became so strong as to subject ail the other countries to its will. Legally; all members
o f the international community wrere on an equal footing. In practice, a group o f Great
Powers (France, Britain, Spain, Portugal, the US, Russia, Austria, Prussia, Sweden, and the
Netherlands) dominated the international scene. Howrever, this group never presented a
united front because there were constant rivalries. A balance o f power proved necessary’
and was in fact established.
It is against this general background that an early experiment in collective sy stems for
restraining power and enforcing the law should be considered. It w’as made in 1815 after
20 See J. Fisch, ‘Africa as terra nullius: The Berlin Conference and International I .aw m S. Forster, W
Momsen, and R. Robinson (eds), Bismarck, Europe and Africa: The Benin A frica Conference 1884-85 and the
Onset o f Partition (Oxford: Oxford University Press, 198S), 347.
21 See e.g. Anghie, Imperialism (n 13).
22 See Hebie, Souverainete p ar traite (n 15).
the defeat o f Napoleon.23 The French Revolution and the genius o f Napoleon had shattered
deep-rooted principles and upset the existing order. The victors felt they had to protect the
interests of European monarchies against the seeds o f revolution. To this end, they met to
devise a system capable of putting a straitjacket on these new forces, which were urging the
abolition o f inequitable practices and the dismantling o f aristocratic privileges. The new
system, called the Concert o f Europe, was set up in a number o f treaties worked out in 1815
and supplemented by subsequent agreements. It rested on three principal elements:
(1) A declaration o f principles, binding all States except for Britain, the Papal States, and the
Ottoman Empire. It proclaimed that the contracting parties would adopt as standards of
behaviour, both in their internal orders and in international relations, the precepts o f the
Christian religion.
(2) A m ilitary allian ce. The ‘Holy Alliance’ was instituted by the Treaty’ o f Paris of
26 September 1815, concluded by Austria, Prussia, and Russia, to which France acceded
in 1818.-4 It envisaged a system for collective security based on the agreement of the big
Powers, designed to forestall or stifle any recurrence o f Bonapartism, either in France or
elsewhere. Under Articles 2 to 4 of the treaty; the contracting States undertook to agree
upon the measures to be taken against those infringing upon the ‘tranquillity’’ and the
established order’ in Europe; they also pledged themselves to agree upon the number of
troops which each o f them was bound to provide ‘for the pursuit o f the comm on cause’.
While, at the outset, the main object was that o f av erting any threat to the stability o f post-
Napokromc France, the sy stem was subsequently extended—through the treaty o f 1818 and
the Troppau Protocol o f 1818—so as to function against any revolutionarv movement likeh'
to overthrow European monarchies. The Troppau Protocol, ratified by Austria, Russia, and
Prussia, provided for three measures in cases o f revolution: (i) the State in which a revolu­
tion broke out would cease to be a member o f the Concert of Europe; (ii) the new gov­
ernment resulting from a revolution would not be recognized; and (iii) the States directly
concerned, or otherwise the Holy Alliance, would interv ene to put an end to the rev olution.
This system prov ed quite effective in practice. It was actually’ resorted to on two occa­
sions: in 1821, when Austrian troops were sent to Naples and Turin to suppress liberal
insurgents on behalt o f the Holy Alliance; and in 1823, when French troops were dis­
patched to Spain, again to thwart a liberal attempt at independence. On both occasions,
one State only— the one directly concerned— made a military’ intervention. But the right to
take action was considered as delegated by all the partners o f the Holy Alliance, and it was
authorized by a general meeting (the Conference o f Troppau and Laybach in the former
case, the Conference o f Verona in the latter).
(3) A new proced u re f o r the settlement o f p olitical questions, consisting o f meetings o f all
the sovereigns concerned where they might discuss great interests in common, consider
measures conducive to the tranquillity and prosperity’ o f peoples’, and attempt to maintain
peace in Europe. In short, a new diplomatic method was propounded: multilateral diplo
macy, based on p eriod ical summit meetings. It proved most useful and was indeed resorted
to on a number o f occasions in later years.
~ See generally C. K. Webster, 7he Congress o f Vienna (London: Humphrey Milford. 1934); K. Giiewank,
Die U icner Kongress und die europdische Restauranon. 1814-1815 (Leipzig: Koehler & Ameiang, 1954); A. Sked
(ed.), Europe’s Balance of Power 1815-1848 (London: Macmillan, 1979); M. Schulz, S orm en und Praxis: Das
Europdische Konzert des Grossmachte als Sicherheitsrat 1815-6G (Oldenbourg: De Gruvter, 2009).
~4 See M. Bourquin, Histoire de la Sainte-Alliance (Geneva: Georg, 1954).
 As soon as European monarchies came under strong attack from nationalist movements
and were gradually overthrown or forced to turn into parliamentary democracies, the sys­
tem set up in 1815 was replaced by the traditional policy o f the balan ce o f pow er, only the
diplomatic method o f summit meetings survived. Protected—at least m some respects—by
this policy; the European Powers revived their tendency to exercise hegemony, endeavour­
ing not to trespass upon the respective spheres o f influence.
W ithin this general framework, the emergence o f the US set a Emit to European influ­
ence and power in the Americas. The new trend was formally proclaimed by the American
president, Monroe, in the doctrine propounded in the famous message to Congress o f
2 December 1823.25 This message stated, first, that ‘the American continents. . . are hence­
forth not to be considered as subjects for future colonization by any European powers’.
Secondly, while the US would not intervene in European matters including European
Powers’ colonies and dependencies’, by the same token it could not allow European Powers
to intervene in America: the US ‘would not view any interposition for the purpose of
oppressing them [i.e. independent Governments o f the “American continents”] or control­
ling in any other manner their destiny, by any European power in any other light than as
the manifestation o f an unfriendly disposition toward the United States’.2627*Thus, a check was
placed on European expansionism and, at the same time, the basic principle was enunciated
that the American continent was under the control o f the most powerful State o f the area.
2 .3 .3 TH E MAIN F E A T U R E S OF TH E LAW
The very expression ‘international law' dates back to this period.2" The legal regulation cre­
ated in this period possesses two salient features:
(1) International rules and principles were the product o f Western civilization and bore
the imprint o f Eurocentrism, Christian ideology; and o f a ‘free market’ outlook (they rested
on a laissez-faire philosophy, that is, on the idea that all States should be legally equal and
free to pursue their own interests, irrespective of any econom ic or social imbalance).
(2) International norms and principles were mainly framed by the Great Powers or mid­
dle-sized States, particularly by those States which had buiit up extensive colonial empires
by dint o f conquest and expansion. They elaborated the rules to serve their own interests.
Among the norms o f this category, particular emphasis should be iaid on those concerning
force: they placed no restraint on the threat or use o f belligerent violence. Other important
25 On this crucial development and its implications see A. Alvarez. The M onroe Doctrine: Its Importance
in die International Life o f the States o f the S ew World (New York; Oxford University Press, 1924). For a more
recent study of the doctrines many faces see J. Sexton, The Monroe Doctrine: Empire an d Sation in Nineteenth -
Century America (New York; Hill and Wang, 2011).
26 J. B. Moore, History an d Digest o f International Arbitrations (Washington, D G Government Printing
Office, 1898), voL 6,368.
27 It was first used in 1780 by J. Bentham in his Introduction to the Principles o f Morals and Legislation. Since
then it has increasingly replaced the previous terms law of nations’ and ‘droit des gens'. As the Italian philologist
P. Peruzzi showed (‘A European Word-Formation Pattern’ (1976) 41 Archivio filologico italiano 76), other fac­
tors besides the strictly linguistic one motivated this change, or were instrumental in making it widespread; the
emotional appeal and the growing importance of the concept o f ‘nation’, the spread o f ‘international industrial
exhibitions’, and the setting up in 1864, in London, of the ‘International Working Men’s Association’, commonly
known as the ‘First International’ or simply, ‘The International’ Some authors have gone beyond locating the
emergence of the expression at this time and considered that the very field o f international law, as it is known
today, emerged in the second half of the nineteenth century' as a professional practice. See M. Koskenniemi,
The Gentie Civilizer o f Nations. The Rise and Fall o f International Law 1870-1960 (Cambridge: Cambridge
University Press, 2001).
rules were those on the diplomatic and judicial protection of nationals abroad: whenever the
citizen of a certain State claimed that a foreign government had behaved unlawfully towards
him. he could request his national government to step in and claim reparation for the alleged
international wrongful act. Clearly, these rules constituted important legal tools in the hands
of those Great Powers whose nationals went abroad to set up commercial enterprises.
A notable contribution to the elucidation and development o f international customary
rules, that often led to the elaboration of international treaties, was made by a group o f
eminent European and American scholars, who were instrumental in the establishment,
in 1873, in Ghent (Belgium) of an association o f distinguished academics, some o f them
involved in international affairs in different capacities: the Institut d e Droit International.
Among them some stood out: the Dutch T. M. C. Asser, the Swiss (teaching in Germany)
J. C. Biuntschii, the Argentinian C. Calvo, the British J. Lorimer, the Italian P. S. Mancini,
the Swiss G. Moynier, and the Belgian G. Rolin-Jaequemyns.2* The aims o f the Institut were:
promotion o f the ‘progress o f international law’ by stating its principles ‘according to the
judicial conscience of the civilized world’; promotion of progressive codification’; and the
‘official acknowledgement7of the principles o f international law. Over the years, the institut
has discussed important topics and passed resolutions that have been influential in the
development o f international law: in particular those on the liberty o f navigation and neu­
trality within the Congo Basin, on rules concerning arbitration proceedings, on land and
sea warfare, on international prize courts, on codification, on the recognition o f States, e tc
Two qualifications should be made to the above remarks on the principal features o f
law in this period. First, in some cases Great Powers were impelled to make concessions to
smaller States (see, for example, the rules on lawful combatants. 173). The second quali­
fication is that a number o f treaties were dictated by humanitarian demands, while others
met the exigencies ot all members o f the international community, whether pow erful or
weak. The former category' includes not only treaties on the slave trade.*'* but also some
international agreements placing restraints on the use o f weapons causing inhuman suffer­
ing (see 17.6.3). At least one of the treaties banning weapons should be m entioned at this
juncture, namely the Declaration prohibiting the use of expanding bullets, adopted by the
Hague Conference in 1899. Sort-nosed bullets which expanded on contact, thus causing
gaping wounds and appalling suffering, had been developed by the British at the Dum-
Dum arsenal in Calcutta in the nineteenth century. As E. M. Spiers recalled, the British
authorities justified their production by saying that
the demands ei small colonial warfare warranted this deviation from the standards o f European
armaments. The enemies whom Britain encountered were not armies from the European countries
who had signed the St Petersburg Declaration [o f 1368, prohibiting the use in time o f war o f explosive
projectiles under 400 grammes weight], but ‘fanatical native^ savages’ and ‘barbarians’. The difference
was deemed substantial; ‘civilised man is much more susceptible to injury than savages. . . the savage,
like the tiger, is not so impressionable, and will go on fighting even when desperately wounded.30
28 On the origin.'., project and ideology of the Institut de Droit International, see Koskenniemi, The Gentle
Civilizer (n 27), at 11.
29 See S. Drescher, Abolition: A History o f Siaverv an d Antislavery {S ew York; Cambridge University Press,
2009); S. Drescher and P. Finkelman, *Slavery’ in Fassbender and Peters. The Oxford H andbook (n 14), at 890.
30 E. M. Spiers, ‘The Use of Dum Dum Bullets in Colonial Warfare’ (1976) 4 journal o f Imperial arui
Commonwealth History 6. It should be noted that the distinction between aviiized peoples and barbas ians. as
far as the use of weapons was concerned, was certainly not new. Back in 1625. Grotius had written that poison­
ing weapons and waters was contrary to the law of nations, not indeed of ail nations but of European nations
and of such others as attain to the higher standards o f Europe’, H. Grotius, On the Law o f War an d Peace, trans.
F. W. Kelsey (Oxford; Clarendon Press, 1925), 653 (Book III, Ch. IV).
Although Britain assured other W estern Powers that it would not use those bullets in
European wars, they managed to have the Hague Peace Conference pass the Declaration
referred to above. Britain grudgingly adhered to it in 1907, and the prohibition gradu­
ally expanded so as to cover any international armed conflict. The other category of
rules intended to meet the demands o f all States irrespective o f their strength included
treaties such as those on diplomatic and consular immunities, as well as the norms on
neutrality and the neutralization o f States. Although some o f these norms were also
motivated by particular interests, their intrinsic significance for the whole international
com m unity transform ed them into lasting principles which continue to display their
effects today.
2 .3 .4 E F F O R T S T O R E S T R A I N T H E G R E A T P O W E R S ’ D O M I N A N C E :
T H E CALVO AND DRAGO D O C T R I N E S
Timid attempts were made to restrain the domination o f the Great Powers by international
or national legislation. The first and probably the most important instance was the clause
that, from the middle o f the nineteenth century, many Latin American States began to insert
into concession contracts with nationals o f foreign countries, chiefly for the exploitation
o f national resources. It was the Argentine jurist C. Calve (1824-1906) who had developed
the doctrine (named after him) o f sovereign equality and national treatment imderfying
this clause.31 It stipulated that in cases o f dispute arising out o f contracts, foreigners relin­
quished the right to request the diplomatic and iudidal protection o f their national State
and agreed to have the dispute settled by local tribunals.
Plainly, the Caivo danse sought to limit the legal and political interv entions o f Western
capital-exporting countries, which often constituted the pretext or the occasion for armed
expeditions, strong political pressure, or other forms o f interference. The attempt was ill-
fated: numerous international courts and claims commissions ruled that the clause was
legally ineffective, in that it could not deprive States o f their rights o f protection, since the
latter derived from international law only. Consequently, the clause was either set aside or
downgraded to a proviso requiring the exhaustion o f local remedies before international
diplomatic or judicial action could be initiated. No doubt the refusal to apply the clause
was legally correct in the light o f the international rules applicable at the time. Tne failure
o f the Caivo stipulation only proved that it was vain to seek to undermine existing condi­
tions by means which fell short o f a radical change in the legal regulation o f the treatment
o f nationals abroad.
Another important attempt to place restraints on the Great Powders’ hegemony was
made, in the early twentieth century, by’ the Foreign Minister o f Argentina, Luis Maria
31 See C. Caivo, Deredio Intem aaona! Teorico y Practice de Europa y America (Paris: D’Amyot/Durand et
Pedone-Lauriel. 1S68), subsequently translated into French and expanded through four other editions, the last
one published as C. Caivo. Le droit international theonaue et pratique (Paris: Arthur Rousseau, 1896). On the
specific context in which the Caivo doctrine arose see |. E. Ylnuaks and M. I. Langer, ‘Foreign Investment in
Latin-America: Between Love and Hatred' in C. Auroi and A. Helg (eds), Latin America: Dreams and Legacy
1810-2010 (London: Imperial College Press, 2011), 319.
Drago (1 8 5 9 -1 9 2 1).32*He argued that the Great Powers must not use military force to seek
payment o f debts from poor countries. The unfettered right o f States to resort to force
included their right forcibly to recover payments due by foreign States to the nationals o f
the former. Three European countries, Britain, Germany; and Italy; used this right against
Venezuela in 1902. They had requested Venezuela (i) to pay compensation for damage
caused to their nationals during the civil strife which raged between 1898 and 1900, and
for the seizure o f fishing boats and other commercial ships by the Venezuelan authori­
ties, and (ii) to repay loans made to Venezuela for the building o f its railway; Venezuela
demanded that the European claims be settled by a Venezuelan commission. This com m is­
sion, however, partly rejected and partly reduced the European demands. The European
Powers found the settlement unacceptable. After imparting an ultimatum, their forces sank
three Venezuelan ships, bombarded the locality o f Puerto Cabeflo, and, on 20 December
1902, instituted a naval blockade off the Venezuelan co a st Venezuela gave in. A few days
later, on 29 December, Drago sent a diplomatic note to the US State Department, in w’hich
he claimed, first, that the European armed intervention w’as contrary" to the Monroe doc­
trine (w’hich he declared he w’as willing to uphold), and, secondly, that financial troubles
and the consequent need to postpone payment of debts was no justification for foreign
military" interv ention, since ‘the collection o f loans by military’ means requires territorial
occupation to make them effective, and territorial occupation signifies the suppression or
subordination o f the governments o f the countries on winch it is imposed’ 35
This note, which enunciated w*hat was subsequently termed the ‘Drago doctrine’ elicited
a lukewarm response from the US. In his note o f 17 February’ 1903. the US Secretary’ o f
State, J. M. Hay; substantially dismissed Drago’s claims and pointed out that, so long as
Latin American countries fulfilled their international duties towards foreign States, they’
need not fear any foreign intervention. Hay quoted a message sent to Congress by President
Theodore Roosevelt on 2 December 1902, which stated: Tt behoves each one to maintain
order within its own borders and to discharge its just obligations to foreigners. W hen this
is done, they’ [the independent nations o f America] can rest assured that, strong or weak,
they have nothing to dread from outside interference’ (U SFR (1903), at 5). In sum, the US
considered protection o f foreign property’ to override the need to keep Europeans from
intervening militarily’ on the American continent.54 It is hardly* surprising that the so-called
Drago doctrine was assailed by leading European jurists as being at variance with inter­
national law—a proposition which was indeed correct, in the light o f the rules obtaining
at the time.
No substantial headway was made in 1907, when Latin American countries endeav­
oured to pass, at the second Hague Peace Conference, a convention forbidding the use o f
force for the recovery’ o f contract debts. The US delegate, General Horace Porter, took up,
but also watered down, the ideas put fonvard by Drago in 1902. General Porter proposed to
make resort to force conditional on the non-acceptance by the debtor State o f international
32 See L. M. Drago, *State Loans in their Relations to International Policy’ (1907) 1 AJIL 692. For a retrospec­
tive assessment see L M. Drago and H. E. Nettles. T he Drago Doctrine in International Law and Politics’ ( i 928)
8 The Hispanic American Historical Review 204.
33 (1907) AJIL, Supp 1 ,1.
'4 It should be noted that, in planning their intervention, the intervening European Powers were careful
not to upset the US as a regional Power. They even sought to have the dispute arbitrated by US President
Roosevelt, albeit the latter declined. See J. E Vinuales, ‘Experiments in International Adjudication: Past and
Present’ in I. de la Rasilla and J. E. Vinuales (eds), Experiments in International Adjudication: Historical Accounts
(Cambridge: Cambridge University Press, 2019), 11, at 19-20.
arbitration or its failure to carry out an arbitral award. The Conference largely accepted
General Porter s proposals and set up a Convention on the matter.33 Significantly, it was not
ratified bv anv European country, thus showing again that even in an emasculated form,
the efforts of Latin American countries to restrain international legitimation o f force were
to no avail.
2 .4 FROM T HE FIRST TO THE SECOND WORLD WAR
Two major events mark the beginning of a new era: (i) the First World War which, although
fought solely in Europe, involved the greater part o f the international community and
caused the members o f that community to strive to rebuild it on better foundations; (ii) the
Soviet Revolution and the consequent rise of the first State openly to oppose the economic
and ideological roots o f other States and of international relations.
2.4.1 THE T U R N IN G PO IN T : THE F IR S T W O R L D
WAR AND I T S C O N S E Q U E N C E S
The Great War had many important repercussions. It marked the passing of the ‘European
Age’.3536 When the war was over, it became apparent that Europe no longer played a cruciai
part in the world com m unin’: the gradual erosion o f its importance, initiated long before,
culminated :n Europe’s demotion to the rank o f merely one o f the areas o f power. Among
the chief factors affecting its position were: (i) the rise o f the US; (ii) the emergence in
1917 o f the S o v ie t Union (as it was called from 30 Decem ber 1922 onwards# and the fall­
ing to pieces o f the substantial ideological and political unity o f the ‘old’ community*; and
(iii) the end of colonial expansion—a striking phenomenon which marked the beginning
o f that long process that culminated in the collapse o f colonial empires in the 1960s. The
decline o f Europe made itself felt in the field of econom ic, military, and political power,
but also in that o f culture and ideology. Europe’s pivotal role in the previous centuries as
the worlds storeroom o f values, institutions, political concepts, and standards o f behav­
iour came to an end.
The war united the whole world—albeit in a forced and somewhat sinister wav. For the
first time a conflict assumed such magnitude as to involve all major members o f the inter­
national community. The war proved that some m ajor events wTere crucial to the world
communin' at large. It became difficult for States to keep aloof from what was happening
in other areas of the w'orld.
2.4.2 THE S O V IE T U N IO N ’S P RESEN CE SP L IT S
THE INTERNATIONAL C O M M U N ITY
It has already been pointed out that although some members of the international com m u­
nity (the Ottoman Empire, China, Japan, Persia, and Siam) had a different economic and
ideological outlook to that o f European States, they had actually yielded to the Christian
majority geared to liberalism, which indeed set the tone throughout the development o f the
international community. In 1917, one government came into being with an ideology and
35 Convention between the United States and Other Powers Respecting the Limitation or the Employment o f
Force tor the Recovery o f Contract Debts, 18 October 1907,36 Statutes at Large 2241.
36 R. Albrecht-Carrie, The Meaning o f the First World War ( Englewood Clifts, X]: Prentice Hail, 1965), vi.
a political philosophy radically at odds with those upheld by all other States. In the interna­
tional field, the USSR advocated the follow ing principles:57
( 1) Sef-determ ination o f peoples, to be applied both to national groups in Europe (for example,
the nationalities in Austria-Hungary) and to peoples under colonial domination (see 3.8).
(2) The substantive equality o f States (by contrast with their legal equality ). Point 6 o f the
proposals forming the basis for negotiations submitted by Adolph Ioffe, the head o f the
Russian delegation to the Brest-Litovsk Peace Conference (which opened on 22 December
1917), proposed that the contracting parties should condemn the attempt by strong nations
to restrict the freedom of the weaker nations by such indirect methods as economic boy­
cotts, economic subjection by means o f compulsory commercial agreements, separate cus­
toms agreements, restricting the freedom o f trade with third countries, naval blockade
without direct military* purpose, etc. Thus, for the first time, there was outright condemna­
tion o f economic coercion, as a means o f subduing weaker States, and unequal treaties.
(3) Socialist internationalism , whereby the USSR pledged itself to assist the working class
and the political parties struggling for socialism in any State. Thus, again for the first time,
a member State ol the international community proclaimed a policy aimed at disrupting
the fabric o f other States and their colonial possessions (and the USSR officially pursued
such a policy until at least 1927).
The potential implications o f this new* state o f affairs were soon fullv appreciated bv
the American Secretary* o f State, Robert Lansing. In a memorandum o f 2 December 1917.
speaking o f Lenin and Trotsky*. Lansing, among other things, wrote the following:
How can anyone deal with such people? They are wanting in international virtue, international
obligations and comity mean nothing to them. The one thing they* are striving to bring about is
the 'Social Revolution], which will sweep away national boundaries, racial distinctions and modem
political, religious and social institutions, and make the ignorant and incapable mass o f humanity
dominant in the earth. They indeed plan to destroy civilization by* mob violence . . . the Boisherik
program is to make way with the m ilitary and political authority In Russia and to incite similar
destruction in other countries. '8
(4) The p a rtia l rejection o f international law The USSR proclaimed that since all the exist­
ing legal norms and institutions o f the international community w*ere the upshot o f ‘bour­
geois’ and capitalist’ tendencies, they were by definition contrary* to socialist interests, and
w*ould be endorsed by the new regime only to the extent that they proved useful to i t
Consequently, many existing treaties w*ere denounced.
in fact, the Soviet government did not reject international law* wholesale. Indeed, it could
not have done so without becoming an outcast in the world community. O ne cannot be a
member o f a social group and at the same time dismiss all its rules. One must comply with
at least some o f them since otherwise international relations become impossible, with the
group as a wffiole ostracizing the recalcitrant member by condemning it to complete isola­
tion. The USSR rejected a number o f bilateral and even multilateral treaties, but it tacitly or
For a concise statement of the Soviet doctrine see S. Krylov, ‘Les notions principales du droit des gens: ia
doctrine sovienque du droit international’ (1947) 70 RCADI407. Professor Krylov was the first Soviet judae of the
IQ, in addition to being a distinguished academic and a legal adviser to the Soviet government His views were
stated in many works, including S. Krylov, E. Korovin, and F. Kojevnikov, Mejdunarodnoepravo [international Law]
(Moscow: Gosiurizdat, 1957). For an external appraisal of Soviet doctrines and their operation see B. Meissner (ed).
Sowjetunion und Volkerrecht 1917 bis 1962 (Koln: Verlag Wissenschaft und Poiitik, 1963); B. Meissner, ‘The Soviet
Concept of Nation and the Right of National Self-Determination (1976) 32 International Journal 56.
38 R. Lansing, War Memoirs (Indianapolis: The Bobbs-Merrill Co., 1935, repr. Westport, CT: Greenwood
Press, 1970), 341.
expressly bowed to a great many international standards. Thus, for example, in addition to
emphasizing the importance o f the customary rules protecting State sovereignty, it invoked
a general norm (the rule rebus sic stantibus, see 10.9 ) to justify its repudiation o f unaccept­
able treaties. Similarly, the USSR upheld many customary rules on treaty making (witness
its entering into a great number o f bilateral and multilateral treaties), and on diplomatic
and consular immunities and privileges. In addition, it tacitly accepted the bulk o f cus­
tomary' rules on the treatment o f foreigners, as is proved by Articles 8 and 9 o f the Soviet-
German Treaty o f 6 May 1921, which stated that Germany guaranteed to Soviet citizens ‘the
prescriptions o f international law and o f the Germ an comm on law.
Nevertheless, the basic Soviet attitude towards the legal instruments o f the intei national
community inevitably undermined some o f the com m unitys basic doctrines. The USSR
eroded—to a greater or lesser extent—many sacred principles, such as that on protection of
investments abroad, while it resolutely opposed others, such as those concerning the rights
o f colonial Powers.
2.4.3 AN E X P E R I M E N T IN C O L L E C T I V E C O O R D I N A T I O N
OF F O R C E : T H E L E A G U E OF N A TIO N S
Following the First World War, the victors decided to set up an international institution
designed to pres ent the recurrence ot worldwide armed contlicL The League oi Nations
was created, with a relatively small membership <42 States including free British dom in­
ions: India, New Zealand, Canada, Australia, and South Ainca).'** For domestic reasons the
US held aloof. Its absence undisputedly weakened the institution from the outset.
The system set up in 1919 resembles the one devised in 1648 in the form o f the Settlement
o f Westphalia (see 2.2). Recourse to force was not generally prohibited, except for a lim ­
ited number o f cases. Articles 12, 13, and 15 ot the Covenant subjected resort to war to a
cooling-off period o f three months. If a dispute was submitted to the League Council or to
the Permanent Court o f International Justice (PC IJ) or an arbitral tribunal, war could only
be resorted to three months after the arbitral or judicial decision or the Council report.
Consequently, there w'as a general prohibition on wars initiated before that delay' or waged
against a State which w~as complying with an arbitral award or a judgment o f the PCIJ, or
with a report adopted unanimously by the League Council.
The League system had major flaw's. There was no ban on resort to force short o f war.
This qualification manifestly induced States to engage in war operations while claiming
that they were merely using coercion short o f war and were therefore not breaking any
provision o f the Covenant An instance is the case o f Manchuria, when Japan attacked
China (1932), which triggered the assertion o f the Stimson doctrine (see 1.7). In add­
ition, war was not banned altogether; it wras only subjected to a cooling-off period, in the
hope that States’ bellicose moods would lose momentum after a certain delay, and that the
procedures for the settlement o f disputes provided for in the Covenant would meanwhile
induce them to refrain from using force. This proved illusory; as is shown by the case o f
the Italian aggression against Abyssinia, in 1 9 3 5 -3 6 .3940*Furthermore, no collective system
39 On this important institution see F. P. Walters, A History ot the League o f Nations (Oxlord: Oxford University
Press, 1952). For a legal analysis of the Covenant of the League o f Nations see R. Kolb (ed.), C om m entahe sur
le Pacte de la Societe des Nations (Bruxelles: Bruylant, 2014). For a survey of work on the League o f Nations see
S. Pedersen, ‘Back to the League of Nations’ (2007) 112 American .Historical Review 1091.
40 For a contemporaneous account see Q. Wright, ‘The Test of Aggression in the Italo-Ethiopian War
(1936) 30 AJIL 45. For two retrospective analyses see E. Santarelli, ‘La guerra d'Etiopia, imperialismo e terzo
mondo’ (1969) 97 II M ovimento di Liberazione in Italia 35; G. W. Baer, The Coming o f the Italo-Ethiopian War
(Cambridge, MA: Harvard University Press, 1967).
was set up for enforcing law' against a State that broke the procedural prohibitions o f the
Covenant. If a member State w'aged war contravening the Covenants stipulations, all the
other m ember States were duty-bound to assist the victim against the aggressor—as long
as they considered the use o f force in the case at issue to be a breach o f the Covenant The
League o f Nations Assembly or Council had no power to send in troops against the aggres­
sors; they could only recommend the use o f force to member States. In short, the Covenant
merely envisaged join t voluntary action on the part o f States. There was no provision for
an institutionalized enforcement procedure, there was no monopoly o f force granted to
the League organs, much less was an international army for the maintenance o f peace and
order set up. Plainly; the League system wras a far cry from the enforcement machinery' that
existed within each State system. Indeed, in the only case w'hen there wras resort to sane- ■
Dons (namely against Italy; 1935-36) they proved a failure, for political reasons. A further
deficiency wras that the Covenants prescriptions remained treaty law; consequently; they
did not bind States outside the League (the US, as well as a number o f European and Asian
countries, including at a certain stage Germany, the USSR, and Japan). As a result, the cus­
tomary international rules authorizing war remained unaffected as far as third States wrere
concerned.
Differences between member States, the lack of co-operation, the fact that the League
gradually became a political instrument o f Britain and France only, along with its inher­
ent institutional deficiencies—all these account for its failure. A number o f States resorted
to force without being the subject o f military sanctions or at any rate without the League
bringing about a satisfactory settlement.
Ih e US and France endeavoured to obviate the most conspicuous deficiencies o f the
League by promoting the Pans Pact o f 27 .August 192S on the Prohibition ofW ar, also known
as the Briand-Kellogg Pact (or Kellogg-Briand Pact). after the names o f the French Minister
ot Foreign Affairs. Aristide Briand. and the US Secretary' o f State, Frank B. Kellogg-4 The
Pact, how'ever, did not make much headw ay, for once again it was only war that w'as prohib­
ited (although the ban w'as now more sw eeping), and in addition there was no provision for
an enforcement mechanism. Furthermore, the correspondence between the parties before
the signing o f the Pact made it clear that the right o f self-defence was unaffected, and that
a very' liberal construction was placed on that right. Thus, Britain stated that it included its
right to defend certain regions o f the world, the welfare and integrity o f which constitute
a special and vital interest for our peace and security’ And the US contended that self-
defence embraced any action decided on by the US government to prevent an infringement
o f the Monroe doctrine. The conspicuous merits o f the Pact were that it laid dowm a more
general prohibition o f war, and that it was binding on States not parties to the Covenant,
such as the US. In fact, Briand had seen the Pact as a tactic to bring the US closer to the
Covenant. However, the Pact itself was unable to supplant the customary rule authorizing
war, in that it did not turn into a customary' rule abrogating the latter.
In short, even in the period between the two world wars. States gradually endeavoured to
retrieve their traditionally unfettered right to use military force in international relations.
The League serv ed to slow' dow*n the process and reduce the instances o f recourse to force.
It w’as, how'ever, unable to introduce a fundamental change in one particular structural ele­
ment o f the old international community.
4 On this highly symbolic instrument sere R. H. Ferrell, Peace in Their Time: The Origins o f the Kellogg-BnanJ
Pact (New Haven, CT: \aie University Press, 1952). For the views of Kellogg and Briand themselves see F. B.
Kellogg, ‘The War Prevention Polio- of the United States' (1928) 22 AJIL 253; A. Briand, Discours et ecrits dc
politique etrangerer. iapaix, W nion europeenne, la Societe des nations, ed. A. Elisha (Paris: Plon, 1965).
2.4.4 LEGAL OUTPUT complaints with the ILO Governing Body. These normative innovations were indicative
of the new tendency to pay greater attention to the interests o f human beings, who until
During this period there was no conspicuous success in elaborating new rules. In its isola­
then had had no say whatsoever in the international community. As the Greek interna­
tion, the Soviet Union remained to a great extent on the defensive; on a number o f occasions
tional lawyer Poiitis stated in 1927:
it challenged existing international institutions, but it was unable to affect the new rules.
The principal area in which marked progress was made w’as that o f the arbitral and judi­ Beforehand, the sovereign State was for its subjects an iron cage whence they- could com m unicate
cial settlement o f disputes. In the inter-war period international adjudication was in full legal!)' with the outside world only through narrow bars. Under the pressure o f the necessities o f
life, those bars have progressively loosened. The cage is starting to wobbie. It will eventually fail to
bloom. The PCIJ, set up in 1921, delivered 32 judgments, and 27 Advisor)- Opinions. The
bits. Men will then be able to communicate beyond the frontiers o f their respective countries freely
parties to the contentious proceedings were mostly European. Similar!)-, the members o f
and without any hindrance.44
the Court were mostly from European countries or from the US (from 1922 to 1930, four
o f 16 judges were non-Western, while from 1931 to 1942 the proportion changed to 7 out
o f 21). Numerous ad hoc arbitral tribunals were also set up. Indeed, most European States
strongly believed that arbitration was the best means o f settling disputes and preventing the 2.5 FROM THE UN CHA RT ER TO THE END
outbreak o f wars. This, however, was an overoptimistic view', both because on a number o f OF THE COLD WAR
occasions arbitral awards wrere not heeded, and because arbitration was inherently unable
to restrain power politics. However, frequent recourse to international adjudication made 2.5.1 THE M A IN CO N SE Q U EN C ES OF T H E SECOND W O R LD WAR
it possible for international courts, particularly the PCIJ, to pronounce on many inter­
In 1945, over a period o f less than two months, three momentous events occurred: on
national legal issues. The case law which evolved w-as instrumental in filling many gaps
26 June the Charter o f the United Nations w'as signed in San Francisco (it came into force
in international law1. Principles and rules were specified, elucidated, and elaborated upon.
on 24 October 1945); on 6 August the atomic bomb was dropped on Hiroshima (two days
This, by itself, was a remarkable contribution to the improvement o f the technical aspects
later Albert Camus comm ented in France that ‘the mechanical civilization has just reached
o f international law-.
its last degree o f savagery’;4" on 9 August a second bom b was dropped on Nagasaki): and on
In addition, a new wind began to blow through the international community, bringing
8 August the Agreement on the international M ilitary Tribunal {IM T) for the Punishment
with it a drive towards limiting inequalities between States, and greater concern for the
of War Criminals was signed in London (the first session o f the Tribunal was held m Berlin
demands of individuals. The tendency to do awav with the most glaring forms o f inequality
on 18 October). These three events were not formally linked to one another. Arguably uiev
can be seen in the gradual abolition o f capitulations. Tne only country where this regime
did, however, result from a unitary design: to put an end to the war, punish those respon
had alreadv been dismantled before the First World War was Japan (in 1899). Capitulations
sible tor it, and set the ground for a new international community .
with other countries were gradually abrogated.
In a way, these seemingly disparate events were destined to have a radical effect on the
The emergence o f a fresh concern with the situation o f individuals manifested itself in
future o f the international community. They increased the existing tension between the
two forms. First, while the slave trade had been prohibited long before, and slavery' itself
opposite poles o f law and force. This tension was now- dramatically enhanced, on the one
had been banned in many States, the Slavery Convention adopted on 26 September 1926
hand, States came to possess potentially unrestricted physical power, on the other, new
under the aegis o f the League o f Nations introduced a general obligation to ‘bring about
rules and principles w-ere proclaimed and acted upon, and a new international organiza­
progressively and as soon as possible, the complete abolition o f slavery' in all its forms’
tion was established with a view' to placing an ever-increasing number of legal restraints on
(Article 2(b )).42 Secondly, a body o f instruments to protect m inorities was developed
State sov ereignty'.
under the aegis o f the League.4243 O f note, groups o f individuals were granted the right to
Peace became the principal goal o f the international community' at large, in the past,
lodge complaints with international bodies. Religious, ethnic, and linguistic minorities
wars had never been of worldwide magnitude; in addition, States had never possessed the
protected by post-wrar treaties were authorized to submit to the Council o f the League
means of destruction capable o f annihilating mankind. The new* appalling advances in
o f Nations ‘petitions’ designed to inform it o f alleged violations o f minority- rights.
humans’ ability to wreak havoc made it necessary' to regard peace as the fundamental pur­
Under Article 24 o f the ILO Constitution, trade union associations were entitled to file
pose of all States, a purpose to which ail others—including respect tor international law and
promotion o f justice—ought to be subordinated. How ever, when the framers o f the UN
Charter upgraded peace to such high rank, they did not naively pursue the goal o f perma­
42 For a retrospective account see A. Ribi Fordaz, Humanitarian Imperialism: The Politics o f Ant-Slavery nent and universal peace. They were aware that international friction and interstate armed
Activism, 1880-1940 (Oxford: Oxford University Press, 2015). 46. See also B. Metzger, Towards an International conflict would not disappear by legislative fiat They m ore realistically set about building
Human Rights Regime during the Inter-War Years: The League of Nations’ Combat o f Traffic in Women and
up a system designed to make armed clashes exceptional events, to be controlled and ter­
Children in K. Grant, P. Levine, and F. Trentmann (eds), Beyond Sovereignty: Britain, Empire an d Transnationalism,
c. 1880-1950 (Basingstoke: Palgrave Macmillan, 2007), 34. For the discussions leading to the Slavery Convention
minated by means o f international institutionalized co-operation. In sh ort States aimed
see J. Ailain, The Slavery Conventions: The Travaux Preparatoires o f the 1926 League of Nations Convention and the at achieving a state o f affairs where the absence o f w'ar w'as to be a fairly normal condition.
1956 United Nations Convention (Leiden: Brill, 2008); J. M ain, Slavery in International Law (Leiden: Brill, 2012),
379 (on the 1926 Slavery Convention) and 384 (on the Forced Labour Convention)
43 For two retrospective accounts see J. Jackson Preece, National Minorities an d the European Nation-
States System (Oxford: Oxford University Press, 1998), 67; C. Gutermann, Das Minderheiten$diutz\'erfahren 44 N. Poiitis, Les nouvelles tendances du droit international (Paris: Libraine Hachetle, 1927), 91.
Volkerbundes (Berlin: Duncker & Humblot, 1979). For a contemporaneous account see J. Stone, International 43 ‘La civilisation mecanique vient de parvenir a son dernier degre de sauvagerie’ Combat, 8 August 1945,
Guarantee o f Minority Rights (Oxford: Oxford University Press, 1932). reprinted in A. Camus, Essais (Paris: Gallimard, 1984), 291.
 One means o f pursuing this new purpose was to render the unleashing o f wars more
onerous than before. Waging war in breach o f international law (that is, a war o f aggres­
sion) was made an ‘international crime’ entailing the personal responsibility o f its authors
(in addition, of course, to that o f the State for which they acted).
The Second World War had yet another remarkable consequence: it precipitated the
downfall o f colonial empires. It accelerated a process which had started earlier, and whose
principal components were the gradual economic and political decline o f European
Powers; the disruptive presence o f the Soviet Union on the world scene; and the grow­
ing political and economic power o f the US, which (despite its colonial domination o f
the Philippines, and the de facto direct or indirect exploitation o f some Latin American
countries) propounded an anti-colonialist ideology. These were the international factors
that contributed to the demise o f colonialism. There were, however, also domestic rea­
sons, which various authors have rightly stressed. After the First World War, at least some
Western European countries had witnessed both a gradual opening to democracy and also
a drive towards the ‘welfare State’, largely motivated by greater sensitivity to and concern
for the underprivileged. Thus, when the cost of maintaining colonial Fule over distant ter­
ritories increased (among other things because o f rising unrest there), the metropolitan
masses were able to transmit a clear message to their rulers: since the principal profits
from colonial exploitation went to limited groups o f people, whereas the military* costs and
also some welfare costs were becom ing an increasingly hea\*y burden on the budget o f the
colonial country*, it was no longer in the interest of the population to persist with colonial
domination.
2 .5 .2 TH E E S T A B L IS H M E N T OF TH E U N IT E D NATIO NS
One o f the ma»or reactions to the devastations o f the Second Worid War and the unfettered
recourse to violence marking those dark years was the keen desire to set up a world organ­
ization that would be capable o f preventing the scourge o f war’ and peacefully settling all
m ajor disputes between States. Thus, the UN was created. As this organization is analy sed
in Chapter 15, it suffices here to outline briefly* its main features.
The political premise to this major turning point was the rapprochement between two
former political opponents, the US and the USSR, which had gradually come about during
the war and had led to some form o f political co-operation. The major victorious Powers
conceived o f the UN as a sort o f prolongation o f their wartime alliance.
The UN Charter banned the use or threat o f force (Article 2(4)) and at the same time
granted to the Security Council the power to take sanctions and measures involving the use
o f force against any State breaking that ban (Chapter VII of the Charter). It also regulated
the gradual demise o f the colonial empires, by providing for the trusteeship sy*stem with a
view* to ensuring a slow passage o f colonial countries to self-government or independence. In
addition, the Charter endeavoured to strengthen international co-operation in various fields.
No doubt the UN was a far better and more advanced experiment in world security than
the previous ones (that o f 1648, which to a large extent remained on paper; the Concert o f
Europe o f 1815; and the League o f Nations o f 1919). Suffice it to mention just one element:
for the first time, the Charter prohibited not just wrar, but any* threat o f or resort to the use
o f military* force. This, by itself, marked an enormous advance in international institutions.
M ore specifically, the system for collective security created in 1945 bears a strong resem­
blance to the Concert of Europe o f 1815 (see 2.3.2). As in the post-Napoleonic era. in 1945
the main Pow ers considered it necessary* to assume control o f international affairs and to
decide themselves on joint action to be taken in case of serious threats or breaches o f peace.
They therefore set up a ‘directorate’, consisting o f the two superpowers (the US and the
USSR) plus a few7other States which, although already on the w*ane, could still be regarded
as indispensable to any effective direction o f international affairs (the UK, France, and
China, the latter being at that time formally represented by the ‘nationalist’ government o f
Chiang Kai-shek). The superiority o f a few* powerful countries was formally* acknow ledged
in law: Article 27(3) o f the UN Charter lays down that the Security Council cannot adopt
any deliberation on matters o f substance unless all five perm anent members agree (either
bv voting in favour or, according to the practice evolved later, by abstaining). This is the
so-called veto by any o f the Big Five. By the same token, the Charter envisaged a system
of collective security: if the Security Council, with the concurring vote o f the permanent
members, agreed that there was a threat to peace, a breach o f the peace, or an act o f aggres­
sion, it could either take sanctions or dispatch UN armed forces against the offending State.
However, tw o events undermined from the outset the w*hole edifice built at San Francisco.
First, less than two months after the adoption o f the Charter, the US dropped atomic bombs
on Hiroshima and Nagasaki: this immediately posed new and dramatic problems. Secondly,
nearly a year after June 1945, the Cold War set in, breaking up the political and military* alli­
ance bom during the war and practically dividing the world into two conflicting camps.
The disagreement between the Western Powders and the Soviet Union, winch surfaced in
1946, with the Cold War spreading everywhere, in most cases prevented the collective secu­
rity sy*stem trom working. As a consequence, the international community had to fall back
on the traditional devices for preventing war or enforcing international law. O nce again, an
attempt at centralizing the use of force ended in failure, and the old institution o f self-help
acquired new importance, albeit with a number o f qualifications.
2 . 5 .3 CH A N G ES IN T H E C O M P O S I T IO N
OF TH E IN T E R N A T IO N A L C O M M U N I T Y
Following the Second World War, the make-up o f the world community* changed rad­
ically. First, a handful o f Eastern European countries, already under the influence o f
the Soviet Union (which had freed them from the Nazis), became socialist ‘dem ocra­
cies’ (the Germ an Dem ocratic Republic, Poland, Bulgaria, Hungary*. Rom ania, and
Czechoslovakia, to which Yugoslavia should be added). As a consequence, the Soviet
Union no longer felt isolated in its ideological and political fight against capitalist States.
Secondly, a num ber o f countries subjected to colonial domination gained political inde­
pendence as a result o f the erosion o f the colonial empires o f France, the U K, Belgium,
the Netherlands, Portugal, Spain, and Italy.
Syria and Lebanon were granted independence in 1945 and 1946 respectively; India and
Pakistan became formally independent in 1947; in 1948 the State o f Israel was founded, and
Burma became independent; independent status was granted to Libya in 1951, to Tunisia,
Morocco, Sudan, and Ghana in 1956, to the Federation o f Malaya in 1957, and to Guinea in
1958. Many other colonial countries gained independence in the 1960s.
After 1960 the bulk o f the international community* consisted o f so-called ‘Third World’
countries, after the expression used by French intellectual Alfred Sauvy, by analogy* with
Sieves' ‘tiers Etat’4* Together with the socialist States they could easily muster a two-thirds
majority* in any* international gathering. The new make-up o f the w*orld community* differs
radically* from that represented in its first phase. W hile in the seventeenth and eighteenth
* A. Sauvy, ‘Trois mondes, une planete, L’Observateur, no. 118,14 August 1952,14.
centuries a number o f European countries dominated the world scene, and non-Western
States were far less numerous and o f marginal importance, now non-Western States con­
stituted the overwhelming majority. However, one should refrain from jum ping to the
conclusion that the new position was the exact reverse o f the former. In fact, the Western
minority still wielded enormous economic and military power, while the majority7 was
chiefly endowed with political and rhetorical authority. Hence, the situation was now more
complex and contradictory than before.
Along with newly independent States, a new category' o f international subjects became
active in the international arena: intergovernmental organizations (see C hapter 7). They
mushroomed in a short period of time, covering several fields (political, econom ic, social,
technical, etc.) with a broad variety o f activities, which had considerable impact on inter­
national affairs. Their existence had many consequences. It may suffice to emphasize one,
which relates to the political field. Previously some States, particularly middle-sized and
small Powers, were to some extent able to refrain from becoming involved in international
affairs which were not direcdy relevant to them. Once they started participating in the
activities of international organizations where all m ajor world events were discussed, often
forming the subject o f resolutions or leading to the taking o f some sort o f joint action, it
became almost impossible for them to remain aloof. They were required to express their
view s on the matter, to take sides, to join in praising, condemning, or exhorting, in short,
the creation of a wide network of intergovernmental organizations aroused or strength­
ened, if not a sense o f solidarity, at least the sense o f belonging to the same community
and therefore o f being concerned by any crucial event occurring in n. If the First Work!
War made each State feel that it could no longer live in relative isolation, the emergence
of organizations buttressed this trend and definitively established the notion that certain
occurrences (aggression in one area o f the world, one particular country's pursuit of a pol­
icy o f destabilization of other States, widespread injustice in economic relations between
tw o or more groups o f States, e tc) were of concern to the whole international community.
2.5.4 L EG A L CHANGE
Once developing countries had, with the active support o f socialist States, firmly established
their command over the UN General Assembly they started devising and propounding
a complex strategy. First, the powders o f the UN were enhanced (at least at the rhetorical
level), except in the area o f collective security', and they were increasingly expanded to new
areas, particularly international development Secondly developing and socialist States
kept insisting on self-determination, permanent sovereignty' over natural resources, and
racial equality, and demanded that these be turned into legal principles. They achieved these
demands starting iiL.1960, with the adoption by the General Assembly o f the ‘Declaration
on the Granting o f Independence to Colonial Countries and Peoples’ (Resolution 1514
(XV )),47 followed, in 1962, by Resolution 1803 (X V II) on ‘Permanent Sovereignty over
Natural Resources’,48 then, in 1965, when the UN Convention on Racial Discrimination w7as
adopted, and again in 1966 when the two UN International Covenants on Human Rights
were adopted. The Covenants included a common article (Article I ) laying down the prin
ciple o f self-determination. These instruments were followed and amplified by a number of
resolutions laying down ancillary rules (see 3.8). Thirdly, the two groups o f States proposed
47 This resolution was, years later, recognized as having crystallized customary international law at the time
of its adoption. See Legal Consequences o f the Separation o f the Chagas Archipelagofrom Mauritius in 1965, $ 150.
48 This resolution was soon recognized as codifying customary international law, see Texaco Overseas
Petroleum Company a n d California Asiatic Oil Company v The Government of the Libyan A rab Republic, ^8/.
that all the basic principles governing international relations should be recast in such a way
as to take account o f their views. This w7as achieved in 1970, after many years of labour, when
the UN General Assembly adopted the Declaration on Friendly Relations49 (see Chapter 3).
Fourthly, codification, that is, the transformation o f customary rules into written form (treaty
provisions or other written expressions), was expanded to cover a wide range o f subjects.50
Finally', developing countries tried to bring about radical changes in the economic set-up o f
the international community. After long and untiring efforts, the so-called Group o f 77 (in
1964, when they first united their efforts on an institutional basis, the .African, .Asian, and
Latin American States numbered 77) succeeded in having the General Assembly adopt a
Declaration and a plan o f action on the ‘New International Econom ic Order’ (NIEO).51 The
outcome took the form o f a series o f resolutions, for it would have been both unrealistic and
premature to impose new economic principles with legally binding force on industrialized
countries. The adoption o f recommendations was seen as the stage preceding the gradual
transformation of political guidelines into international legal rules.
During this period, the contribution o f the lnstitui d e D roit International and, more gen­
erally, o f individual writers, to the elaboration or codification o f international law increas­
ingly dwindled. This was mainly due to the UN’s establishment o f the International Law7
Commission (ILC), which is charged with the task o f contributing to the codification and
progressive development o f international law, as well as the increasing adoption, by the
General Assembly, of normative resolutions or Declarations concerning important issues
of international law
2.6 FROM THE END OF THE COLD WAR
TO THE PRESENT
The fall, in 1989. of the Berlin Wail and the subsequent break-up o f the group o f socialist
States led to the demise o f the whole o f this group. The Russian Federation, despite being
technically the continuator o f the USSR (see 4.4), did not inherit the Soviet Union’s posi­
tion as a superpower."2
49 On this important instrument see M. K. Nawaz ei a l (eds), The Legal Principles Governing Friendly
Relations and Co-Operation am ong States (Leiden: Sijthoff, 1966); G. Arangio Ruiz, ‘The Normative Role o f
the General Assembly of the United Nations and the Declaration o f Principles of Friendly Relations’ (1972)
137 RCADi 419: M. Sahovic, ‘Codification des principes du droit international des relations amicales et de la
cooperation entre !es Etat> ( 1 9 ,2 1 137 RCADI 243; G. Abi-Saab, ‘La reformulation des principes de la charte
et la transformation des structures roridiques de la communaute intemationale’ in Le droit international au
service de la paix, de La Justice et du derveioppement: melanges Michel VtraUy (Paris: Pedone, 1991), 1; I. Sinclair.
The Significance of the Fnendiy Relations Declaration in C Warbrick and V. Lowe (eds), The United Nations
and the Principles o f International low , Essays in Memory o f Michael AJcehurst (London: Routledge, 1994), 1; J.
E. Vinuaies (ed.). The U S Friendly Relations Declaration at 50: Ar. Assessment o f the Fundamental Principles o f
International Lem- (Cambridge: Cambridge University Press, 2020).
See SFDI, La codification du d w it international: Coiloque dAix-en-Prcn-ence (Paris: Pedone. 1999).
On the economic dimensions of the NIEO see J. Bhagwati (ed.), The New Internationa! Economic Order:
Tne North-South Debate *Cambridge. M A MIT Press, 1977), For different views on the legal dimensions see G.
A C. White. A New International Economic Ordet (1975) 2 4 1CLQ 542; D. Carreau, ‘Le nouvei ordre econom-
ique international’ (197“ ) 104 JD1 595; S. Marchisio, La cooperazione p er lo sviluppo nel dintto delle Nazioni
Lmze tNapies: Jovene. 197"); M. bedjaoui, Towards a New international Econom ic Order (Paris: UNESCO,
1979); R.-j. Dupuv ted.), Tne S en international Economic Order (Leaden: Martinus Nijhoff, 1981); G. Abi-Saab,
Le droit au deveSoppement f i 988; 44 Annuaire suisse de droit international 9.
- 0x1 h e implications o f the transition from the USSR to the Russian Federation from the perspective of inter­
national law see T. Langstrdm, Transformation m Russia and International Law (Leiden: Martinus Nijhoff, 2003).
 At present, there no longer exist in the world community three distinct groupings. The
global system characterized, in the two decades following the collapse o f the USSR, by
‘unipolarity’ with the US as the only superpower, is giving way to a new variant o f the old
‘multipolar’ system, where newly emerging countries, sometimes referred to as the BRIICS
(Brazil, Russia, India, Indonesia, China, and South Africa), as well as the EU, occupy an
increasingly important place in global affairs. This diversification o f the poles o f power has
called into question the short-lived end o f history’ that some saw in the political and ideo­
logical influence o f the US. China, which has grown increasingly assertive in international
relations, has challenged the pre-eminent position o f the US, which, faced with domestic
division and inw*ard policies, has lost much o f its prestige and influence in the global arena.
The beginning o f this multipolarity* can be tentatively found in the 200S world economic
crisis. Tw o distinct periods can thus be identified: one which goes from the end o f the Cold
War to the 2008 crisis, and the other that began with the latter crisis and is unfolding before
our very eyes.
2.6.1 ‘U N IPO LARITY’
During the first period, the US, dubbed the ‘lonely superpower’, '3 tended to act as a world
policeman, that is, it endeavoured to settle political disputes or to promote settlements, as
well as to contribute to the maintenance o f peace and the enforcement o f international law.
This role, how ever, was played selectively, th<*t is. only to the extent that it proved consonant
with, and favoured, the strategic and geopolitical interests o f the US. Thus, in many cases
where these interests were at stake, the US acted forcibly through the UN (Iraq, 1990-91,
Somalia, 1992, Bosnia-Herzegovina. 1 9 92-95); in other instances, where UN support was
not forthcoming, it acted through NATO, in d ear disregard of the UN Charter (Kosovo,
1999). In yet other instances, it either reframed from taking military action, because its
interests were not involved (e.g. Rw*anda, 1994, Sierra Leone, 2000, etc.) or engaged in mili­
tary* operations without any UN authorization (Iraq, 2003-04). Tne US also exerdsed its
political role as a global mediator in many trouble-spots (e.g. in the Middle East, Northern
Ireland, etc.).
The former socialist countries, no longer united, tended to lean on Western countries.
Developing States are no longer divided into one group siding with socialist States and
another siding with the West. Ih ey seem to be no longer ideologically oriented. They are
instead united by their demands for more international economic and financial assistance
and greater access to world markets. In the UN, these countries have sometimes negotiated
as the ‘Group o f 77’ (see 2.5.4), when discussing economic and, to some extent, environ­
mental matters, but they* have also acted in other formations, in relation to political matters.
What also characterized the first post-Cold War period were: (i) the relative decline of
the UN as an international institution for the maintenance of peace and stability; (ii) the
tendency* o f States to strengthen and broaden the role o f military* alliances such as NATO;
(iii) the growing trend towards regionalization (a trend that appeared more conspicuously
in Europe, with the European Union); and ( iv ) the devastating importance o f terrorism.
The impact o f terrorism on the life o f the international community* since the 11 September
2001 attacks on the US signalled, in fact, a dramatic turning point in the evolution of the
world community: as a result o f those attacks, the increasing spread o f terrorism, and the
consequent forcible reaction of many States, a number of international legal categories and
instrumentalities have been called into question or, at the very* least, suffered an overstretch
53 See S. Huntington, ‘The Lonely Superpower’ (1999) 78 Foreign Affairs 2.
(e.g. in the area o f self-defence, see 16.5), which in the long run could potentially lead to a
significant change in international legal standards and institutions.
2 . 6 .2 E M E R G I N G ‘ M U L T I P O L A R I T Y ’
Turning to the second period o f the post-Cold War world, it would seem that the main
divide today is that resulting from socio-economic development, w*ith broad categories
of countries labelled as part o f the ‘Global North’ or the ‘Global South’. These labels are, to
be sure, very* approximative, and they mask wide variation within them. But they can be
borrowed, for present purposes, to briefly characterize the agendas of different groups o f
countries.
At present, the industrialized countries o f the ‘Global North’ see as the main inter­
national problems the fight against terrorism; free trade; nuclear disarmament; protection
of the environment (particularly climate change); prevention o f viral outbreaks and disease
spread; and the need to prevent ethnic, racial, and religious conflicts—increasingly rife
in so many parts o f the world— from spreading across the borders o f the countries where
they break out. No fully fledged common legal strategy* may be discerned in this group o f
countries.
As for the w*ide range o f developing States, in the so-called ‘Global South’ they consider
that the major problems are their poverty* and development challenges, the lack o f fair
access o f their products to world markets, and the dangerously widening gap with industri­
alized States. Their legal strategy in the world community reflects these concerns. As for the
legal means o f action thev pursue, it would seem that they* have drawn an important lesson
from (a) the failure o f both the NIEO and their doctrine o f the so-called right to develop
ment, and (b) the fact that thev now lack the ideological and political support thev previ­
ously attracted trom socialist States. They therefore no longer insist on passing General
.Assembly resolutions proclaiming new* rights or outlining new* economic strategies. They*
have realized that it is more constructive to come to some sort o f agreement or compromise
with the industrialized countries.
A characteristic feature o f m odem developments in international law* deserves to be
emphasized. Over several decades, a certain degree o f specialization in the rules governing
some matters led to the consolidation o f recognizable bodies o f norms, sometimes called
‘branches’ or—confusingly—‘special regimes’ o f international law*. This process o f special­
ization concerns, for instance, human rights law*, the humanitarian law* o f armed conflict,
environmental law, international health law, international trade law*, international invest­
ment law*, international criminal law, or the law o f the sea. For some time, they lended to
appear as separate and tight legal compartments, which gave international lawyers the false
impression that international law* was legally fragmented. Whereas that may have been true
from a sociological perspective, with groups of lawyers, scholarship, academic degrees, and
ev en professional groups identifying themselves by reference to a ‘branch’, the law* itself
never supported such a conclusion.54
At present, these groups and therefore the labels are becom ing less homogeneous and
w*ater-tight, and the profound connections between different bodies o f norms are becoming
gradually* understood and fleshed out in legal scholarship and practice. Thus, for instance,
two bodies o f law; namely international rules and guidelines on the protection o f the envir­
onment and international trade law; are increasingly linked to— and, to some extent, made
54 See P.-M. Dupuy, ‘L’unite de I’ordre juridique international: cours general de droit international public
(2000}’ (2002) 297 RCADI9.
contingent on the application of—the law o f development as well as human rights law;
international criminal law is more and more influenced by human rights law and linked
to humanitarian law; the operation o f human rights and investment law is influenced by
that o f international health law; the law o f State responsibility is increasingly overlapping,
or being influenced by, the law on individual criminal liability; in many respects the law
o f the sea has been connected to the law’ o f development and is seen as a possible means o f THE FUNDAMENTAL
promoting the take-off o f the economies o f poor countries.
This gradual interpenetration and cross-fertilization o f previously somewhat compart­
mentalized areas o f international law is a significant development: it shows that, at least at
PRINCIPLES GOVERNING
the normative level, the international community is becom ing more integrated and—what
is even more important—that such values as human rights, environmental protection, and
INTERNATIONAL RELATIONS
the need to promote development are increasingly permeating various sectors of inter­
national law that previously seemed impervious to them.

3.1 C HA RA CT E RI Z AT I ON OF FUNDAMENTAL
P RI NC IPLES

Most States have written constitutions that lay down the fundamental principles regulating
social relations. Principles are the pinnacle o f the legal system and are intended to serve as
basic guidelines for the life ot the whole community. Besides imposing general obligations,
they also set out the policy lines and the basic goals o f State agencies. Furthermore, they
can be relied upon for the interpretation o f legal provisions, whenever the ordinary* rules
on interpretation prove insufficient.
The position is different in the world community. When this community came into exist­
ence. no State or other authority set forth any fundamental principles lor regulating inter­
national dealings: no State had enough power to impose standards ofbehaviour on all other
members. A body o f law gradually evolved under the impulse o f convergent interests and
exigencies or States, but no general overarching principle was agreed upon. However, ?he
increase in the corpus o f rules by the gradual accretion of new norms made it clear that
States spontaneously and almost unwittingly based their relations on a few fundamental
tenets from which they drew inspiration. Close scrutiny o f the legal standards emerging in
the first stages ot development o f the international community shows that States substan­
tially acted up>on at least three postulates: freedom, equality, and effectiveness. These postu­
lates differ from the general principles o f national legal systems, which are legally binding.
The three postulates are merely legal constructs reached through an inductive process based
on generalization o f some of the distinguishing traits of international rules. Through such
a process, the conclusion can be reached that, in the early day's, most international rules
granted a wide sphere ol action to States; they proclaimed or relied on the legal equality of
States; and tended to legitimize situations w'hich had acquired de facto force.
The three postulates are clearly the synthesis o f what could be concisely defined as
the ‘laissez-faire approach’ o f classical international law. Under this approach, all States
were equally free to do what they liked provided they followed certain ‘rules o f the game'
Moreover, if, in the exercise o f this almost unfettered freedom, they could bring about new
situations by torce, the law would give its blessing to these situations.
The adoption o f the UN Charter in 1945 heralded a very significant change: the draft­
ers laid down in Articles 1 and 2 a set o f fundamental purposes and principles by which
all the members of the UN were to abide. They ranged from the recognition o f the self-
determination o f peoples or o f individual human rights, to the sovereign equality o f States,
the prohibition o f the use of force, the obligation to settle disputes peacefully, or the need
to behave in good faith. Thus, an international treaty of overriding importance set forth